Thoughts on Kavanaugh

I am normally reluctant to publicly address political matters. Our increasingly uncivil political discourse usually deters me from speaking out about issues that have so radically polarized us. Neither side of the political spectrum any longer appears open to the possibility that their party or its representatives are capable of wrongdoing; partisanship has apparently relieved many of the burden to exercise prudence in instances where political expediency urges absolute devotion. I am no exception to the general rule. The best each of us can do is to continuously evaluate the soundness of our judgments in an effort to overcome the deep-seated prejudices arising from our good intentions.

In that spirit, I have outlined a few tentative thoughts on the case of Judge Kavanaugh and his accuser, Professor Ford. I’ve tried not to draw any foregone conclusions, but rather to soberly reflect on the bare facts as the occur to me.

There is a fact of the matter about what transpired on the night in question.

This seems obvious, but it’s important to distinguish what actually happened, the fact of the matter (FOTM), from what the parties involved recall having happened, or how society once viewed and now views what transpired. There is, in other words, a truth about the circumstances that does not yield to personal or cultural interpretation.

The only means of adjudicating moral guilt in this case is to obtain reliable knowledge of the FOTM. Before we risk imposing judgment, it must be more likely than not that our understanding of the circumstances surrounding the incident is reliable.

Subjective interpretations matter, to a degree.

The personal recollections of the parties involved constitute almost the entirety of evidence available upon which to reconstruct the FOTM. But recollections of events thirty years past may be unreliable. Two persons may remember the same event differently.

Subjective interpretations may be wrong in two different ways:

Ford and Kavanaugh’s testimonies may be willfully fraudulent or merely mistaken. Both parties may genuinely remember the FOTM differently – having succumbed to the distorting influence of time. Or one may be lying, giving false testimony while knowing the FOTM to be something else entirely. In other words, subjective interpretations are relevant beyond the scope of determining matters of fact; they are the material upon which charges of perjury are made.

Social conventions were different 35 years ago.

True, but that’s mostly a red herring. Men were indeed granted more latitude by society in choosing how to pursue women. Films of the era lionized men who physically overpowered “coy” women who sometimes required forceful convincing. A crucial distinction, however, is that female film stars were usually portrayed as having covertly desired such domination and were therefore considered consenting.

The prominence of that cultural phenomenon may have some relevance in explaining why Kavanaugh might have conducted himself in such an alleged manner, but it has little relevance in adjudicating moral culpability. If the FOTM is that Professor Ford voiced her disapproval of his alleged advances, then societal norms simply do not factor into assessing moral culpability. That slavery, devastating drug use and rampant promiscuity were at various times overlooked or tacitly tolerated by society has no bearing on their actual moral propriety.

The accusations raised against Kavanagh are undoubtedly politically motivated.

True, but that too has limited relevance upon determining culpability. Democrats and Pelosi Feinstein have done Professor Ford a grave injustice by withholding her accusations until the most politically expedient juncture. They reveal their true priorities and self-interestedness. While such transparently self-serving maneuvers raise doubts about Pelosi Feinstein et al.’s own incentives, it offers little insight into the FOTM.

Professor Ford appears a credible person.

Bracketing for a moment all political calculation, there is little reason to conclude that Professor Ford is not a credible person. Her professional conduct and personal history cannot as far as I know be used to impugn her character.

Therefore I find it difficult to imagine she would completely fabricate an accusation without having experienced something to cause her grief. Her confiding the alleged assault to a counselor in 2012 supports this conclusion.

Details matter most, and they are precisely what is unobtainable.

That an incident occurred in which Professor Ford felt threatened and victimized I am willing to concede on the basis of her testimony alone.

But even granting that Professor Ford is earnest and truthful in reporting her subjective impressions of the FOTM, Judge Kavanaugh may also be, to the best of his knowledge, reporting truthfully, i.e., not perjuring himself.

To determine the existence and extent of Judge Kavanaugh’s actual moral misconduct, we require the assurance that only multiple corroborating accounts can supply, and so far we have received only exculpatory testimony from persons Professor Ford places at or near the scene.

Whatever one’s opinion, no one is certain of anything beyond what is claimed, and claims alone can never stand in the place of corroborating testimony or independently verified fact.

Its assiduous investigative might not withstanding, the FBI has no greater access to the FOTM than anyone else. The details are shrouded by time and in the possession of a few alleged acquaintances and witnesses from whom we’ve already received statements.

That said, if I were among the Republican leadership I would call for a timely investigation by the Bureau as a display of extraordinary due diligence. It would almost certainly surface nothing relevant but would pacify the segment of the public still susceptible to dispassionate reasoning.

What forms and degrees of misconduct are disbarring?

I’ve encountered persons on the Left who refer to Judge Kavanaugh’s alleged conduct as rape, not attempted rape. It’s an example of the powerful impact of changing social and political norms upon language. We need to ask ourselves: does every form of sexual misconduct constitute rape or attempted rape, or can we reserve those harsher terms for instances of a more heinous nature? Do the words capture a genuine distinction that victims themselves would fight to preserve?

Furthermore, is every form of undesired and unreciprocated sexual advance committed by a young person grounds for disbarring him or her from attaining the highest offices in the land? Would non-sexual violent assault be treated any differently? Can a person redeem him- or herself through a lifetime of virtuous public service, or is one proven case sufficient to destroy their prospects? I’m not sure I have reached satisfying answers to these questions.

Regardless of the fact of the matter, the situation is deeply troubling.

That a credible person such as Professor Ford has made an accusation of sexual assault against a distinguished judge is profoundly disturbing. It is most troubling because we are unlikely to reach a certain and satisfying understanding of the events in question, but it is also troubling because the truth is likely to fall somewhere in between the accounts and partially implicate both sides.

While I can never pretend to comprehend the anguish experienced by victims of sexual assault, I do hope that the complexities and challenges posed by this case prompt others to step forward in a timely manner. Hard as it must be, going on the record is surely preferable to enduring skepticism decades later. Even if Professor Ford is recounting the FOTM precisely as it happened, her delay in publicizing the event may have deprived us all of the certainty needn’t to make an informed, responsible decision.

On the other hand, that a person’s career and life legacy can be jeopardized by no more than an uncorroborated accusation should alarm us all. We are just as vulnerable, if not infinitely more so, to similar accusations as is Kavanaugh, a venerated judge. What standard of evidence would we demand in our own case, or in the case of a family member?

The extent that the issue is further exacerbated or complicated by political calculus is exceedingly regrettable, yet a symptom of our uncivil age.